Don't Drink That!

Michael Bloomberg, the mayor of New York City, is proposing a ban on the sale of "sugary soft drinks" in containers larger than 16 ounces in restaurants, movie theaters, stadiums, and arenas. This is just the latest move in his campaign to get people to make more healthful dietary choices.

Given that people can simply go back for seconds, it would seem that the effect of this restriction might be educational, in that it would force New Yorkers to think about the fact that they are consuming large amounts of sugar in their beverages. The city's health department already runs ads in the subways telling consumers this is not good for them.

It's possible there are many people who don't already know this, but I'm skeptical. One need not conduct a laborious search to find information about this sort of thing. Drinking Coca-Cola®? An eight-ounce serving has about 100 calories from sugar, the same amount you'd get by adding four well-rounded teaspoons of sugar to a cup of coffee. The effect of this is not a mystery, either. Just one such 8-ounce beverage per day will add ten pounds of fat to your body in a year. Put another way, the substitution of a non-caloric beverage, such as water or a diet soft drink, would translate into a ten-pound weight loss in a year. If you're the sort of person who goes through a two-liter bottle of regular soda pop each day, getting rid of those calories would help you drop 80 pounds in a year, assuming you didn't just replace the calories by eating chocolate chip cookies. We all have to make choices, of course, so if I'm keeping my calories constant, I'll definitely take the diet cola and eat the chocolate chip cookies, thank you very much.

The problem is not a lack of information. Everything is online nowadays, and a few keystrokes on a computer, tablet, or smartphone will summon the caloric content of just about anything. If you don't know, it's because you don't want to know. And if you don't want to know, Mayor Bloomberg is not going to change that by keeping you from buying more than 16 ounces in a single container at a time. He could send you off to a reeducation camp in the countryside, like they did in China during the Cultural Revolution, but I think the libertarians and others opposed to the "nanny state" approach to public health would find this more objectionable than the soft drink limit.

Mayor Bloomberg is correct when he opines that obesity is a major public health problem in the United States. When people register as patients in the emergency department where I work, a nurse enters height and weight in the computer system, and body mass index (BMI) is automatically calculated. This is one of many bits of information I can see at a glance for every patient. So many patients are overweight that I am pleasantly surprised when I see a BMI less than 25.

Public education is a good thing. I readily concede that it may help if people are frequently reminded of things they already know. And educating our children about healthful dietary choices is certainly a sensible approach. So Michelle Obama's focus on childhood obesity may make a difference in the lives of some Americans. Perhaps as a result of her interest in this problem, some of us will grow up choosing our food and beverages more wisely and getting more, and more regular, exercise. The Bush Administration's efforts to improve public education, labeled "No Child Left Behind," have no shortage of critics, but I'm hoping Mrs. Obama's programmatic vision, which I have whimsically dubbed "No Child with a Fat Behind" will be better received and more effective.

Government's efforts to protect us from ourselves have produced mixed results, mostly because we stubbornly resist. We have seatbelt laws, and yet people drive without wearing their seatbelts, with predictable and tragic results when they are involved in crashes. We have motorcycle helmet laws, and riders generally comply where such laws are in effect - mainly because police can see so easily when riders are violating the law. But everywhere that there are helmet laws, freedom-loving bikers incessantly lobby for their repeal. It is difficult for me to believe that the families of unhelmeted motorcyclists who die or suffer severe, permanent disability from head injuries are thankful for the legislative efforts of the libertarian bikers. Yet those efforts continue unabated (pun intended).

This time of year I begin seeing many young people who somehow find it appealing to ride all-terrain vehicles in the dark, in the woods, drunk, with no helmets or protective clothing. The results of such behavior are predictable, even if you are not too bright and have never set foot into the trauma bay of a hospital emergency department.

So what, exactly, does Mayor Bloomberg think will be the effect of figuratively shaking the nanny state's finger at such stubborn folk when they want to buy a soft drink in a Big Gulp size? Bloomberg likes limits. He thinks if laws limit citizens to purchasing one handgun per month, we will have less violent crime committed with guns.

Maybe that's true. And maybe if you can't buy a 20-ounce soft drink at Yankee Stadium, that will help you get thinner.

But Americans don't like limits. And New Yorkers don't like Bloomberg's policies, at least judging by a 44% approval rating in one recent poll. We do like information. (Consider Wikipedia's estimated 3 billion page views per month in the U.S., if you have any doubts about that.) It's just that we like to decide for ourselves what to do with that information.

In Memoriam

As I gaze out my window at the clear blue sky on this lovely Memorial Day, my thoughts drift to my father. Seventy years ago, at the age of 17, he enlisted in the army. He volunteered because he believed that his country, which had been attacked at Pearl Harbor a few months earlier, was fighting a just war. He lied about his age. If a young man wasn't 18 yet, he had to have parental consent to enlist. My dad didn't know if his mother would object, and he knew it was easier to obtain forgiveness than permission.

He served in the Army Air Corps as a tailgunner. He was shot down twice behind enemy lines and was awarded a purple heart. Yet it was difficult to get him to talk about his wartime experiences. I thought maybe it was because he had been "shellshocked" - the old term for what is now called post-traumatic stress disorder (PTSD) - but I never quite figured out if that was so. I'm inclined to think it was really because, like so many others of his generation, he was just doing what he knew had to be done.

Many years ago I came across a lithograph of a scene from an air attack on the Romanian oil fields at Ploiești. It was in a box of old stuff of his, and I thought I remembered that it had once briefly been hung on a wall in his apartment. I asked him about it. I wanted to know if he had been part of that raid. He said he had, and he made it sound like it was no big deal. I thought maybe it was, because someone had thought it was important enough to make a very striking print of this scene of bombers in the sky over an oil refinery in flames. So I looked it up.

It was part of Operation Tidal Wave. It really was a big deal, from what I could tell. The Allies wanted to disrupt Axis oil supplies. More than fifty Allied aircraft were lost, and more than 600 servicemen were killed. Many years later I read Daniel Yergin's book, The Prize, and I learned much more about how important oil was as a strategic part of World War II. The only thing my dad would say about Ploiești was that the damage to the refineries was repaired in a matter of months after the raids, but maybe it gave the Soviets some valuable time to strengthen their forces in anticipation of a German invasion.

So much has been written about "The Greatest Generation," as Tom Brokaw called them in the title of his 1998 book. He characterized these Americans, the ones who had come of age during the Great Depression and fought WWII to make the world safe for democracy, as a generation willing to make sacrifices for the sake of their country and its ideals and for the future of the Free World. They did not do it for glory or because they wanted to be remembered with reverence. They did it because it was the right thing and because it had to be done.

So they went to war. Or they stayed home and worked in the factories to supply materials for the war. They endured shortages and rationing of things we take for granted, from gasoline to foodstuffs. If they ever complained, I was never able to find anyone of that generation who recalled hearing it.

I remember my high school history teacher, who had not been physically fit to serve, talking about how parents of the young men in his classes gave him gas ration coupons because they were impressed with his devotion to his students. (They knew he was courting a girl, who would become his wife, and they thought it would help if he could take her for a drive in the country on a Sunday afternoon once in a while. They'd been married 30 years by the time I heard the story.) He taught his students about Nazi Germany. The ones who enlisted in the service were very sure they were doing the right thing. He was embarrassed about being able to go for a drive that was purely for pleasure, but he thought it was important to get the girl. I don't know how his teaching of 20th century American history would have been different if he'd been able to serve in Europe or Asia. We certainly wouldn't have learned so much, from such a personal perspective, about the home front. But I also knew, when I was 15, that if he'd been physically fit to serve, we might not have been learning history from Mr. Soslow at all. That's a sacrifice he would gladly have made, but I've always been deeply appreciative of his not having done so.

Every year at this time we are reminded that this holiday is not about cookouts and barbecues, chili dogs and beer. It's not even about flying the flag and taking pride in what the United States has done in the last century to promote freedom and democracy across the globe. Rather it is a time to remember the sacrifices of those who died in the struggle for that freedom.

I've long felt a sort of special connection to the holiday because of a minor geographical coincidence coupled with an historical misunderstanding. I spent a good portion of my childhood in a neighborhood in Philadelphia called Logan, which shared the name of Civil War General John Logan, whose General Order No. 11 officially proclaimed Memorial Day in 1868. It was a long time after that connection first caught hold in my mind that I learned my neighborhood was actually named for James Logan, of whose plantation it had once been a part. That Logan had been an advisor to William Penn, the colonial founder of Pennsylvania (meaning Penn's Woods). But General Logan's idea was a good one. Those who have fought and died for their country must be remembered.

It is also important, I think, that they be remembered with gratitude whether or not we believe in the cause. As I mentioned earlier in this essay, my father believed WWII was a just war. He did not feel that way about Viet Nam, and he worried about the possibility that I might be drafted. I did not turn 18 until the end of 1975, by which time the draft had ended. But this man who had lied about his age to enlist in World War II said he would have personally transported me to Canada to keep me out of the Viet Nam War. I've always been glad neither of us had to have our loyalty to country tested in that way. Thirty-seven years after the fall of Saigon, with a little historical perspective, I think we made a lot of mistakes in Viet Nam, but I think we were there for the right reasons.

Our veterans deserve our deepest gratitude, whether they served in World War II, Korea, Viet Nam, the Persian Gulf, Afghanistan, or anywhere else the United States has put our servicemen and women in harm's way. I remember the way some returning Viet Nam vets were treated by war protesters when they returned. My sense of shame about that is as deep now as it was in the 70s. I hope that we never again allow our disagreement with the civilian government that decides where to send our troops to influence the way we treat those who have worn the uniform in the service of their country.

I know everyone who reads this has read and heard the phrase "Thank a soldier" dozens or even hundreds of times. I believe some of you still haven't done it. If you haven't, find an opportunity this week. If you have, thank you for doing it, and please do it again.

Read the Label! Nutella Has Ingredients

Most of the time when I sit down to write an essay for this blog (and apologies, to those of you who like reading it, for the three-week hiatus), I am indulging my belief that I have some worthwhile insights to share. Not this time. This is a rant, pure and simple.

As you know from reading my last entry ("Evil on the Back of Your Phone Book"), plaintiffs' trial lawyers are not my favorite people in the world. But what about the plaintiffs themselves? Some of them are every bit as outrageous - or worse.

Take the example of Athena Hohenberg, a California mother who initiated a class-action lawsuit against the makers of Nutella. For those of you who've never tried Nutella, I recommend you do so. It is a soft spread made from ground up hazel nuts (a.k.a. filberts) and cocoa. Do not take my advice if you are allergic to tree nuts, because if you do that and sue me, I will be forced to decide whether you should be drawn and quartered or boiled in oil. (Pick one: it really makes no sense to do both.)

Nutella's advertising suggests you can put this stuff on toast and have it as part of a good breakfast. The key words in that sentence are "advertising" and "part." If you don't know that advertising, by its very nature, includes claims that are exaggerated or misleading, then you have just arrived in Western society from God-knows-where.

Hohenberg was reportedly appalled when she discovered that the stuff she was feeding her four-year-old daughter was not the most healthful choice possible and decided to sue Nutella for deceiving her.

And the judge assigned to the case presided over a settlement that awarded some $3 million dollars, most of it to people who will make the effort to fill out paperwork claiming they were also deceived, just to get up to $20 back, but a nice chunk of money for Hohenberg, too. (I really hope she puts it in a trust fund to pay for her daughter's college, although if little Hohenberg has the smarts to get into a university in the UC system, she won't need it. But I digress.)

Nutella has agreed to change the product's labeling and its advertising. Specifically, they have agreed to put nutritional information on the front of the package, to assist those who have some sort of disability - I'm still researching this aspect of the case - that makes it impossible for them to turn the jar around and read the quite-large-enough print on the back that tells you exactly what Nutella's nutritional characteristics are.

Surely you've seen commercials for children's breakfast cereals that tell you the cereal can be part of a nutritious breakfast. You know, without even looking, that the first ingredient on the cereal box is sugar and that the nutritious part of what's in that bowl pictured on the box is the milk. (Yes, I know the vegans will disagree.)

If you had never heard of Nutella and believed, based on your knowledge of linguistics, that it is an intimate, diminutive nickname for a nutty lover ("Ah, Sophia, my little Nutella...."), you could still pick up a jar of it and tell, right away, that it's a far cry from All Bran. You see, the makers of processed foods have to list ingredients. And they have to be listed in order of how much of the product consists of them.

So if the first ingredient is sugar, that means there is more sugar in the product than any other single ingredient. I am reminded of a Peanuts comic strip. Sally says to Linus, "I don't know if we should eat this cereal. It's full of ingredients." But that list is your friend if you want to know what you're eating. And the Nutella label lists sugar, palm oil, hazelnuts, and cocoa before it gets to skim milk.

So if Athena Hohenberg was deceived, by marketing, into serving Nutella to her daughter for breakfast and was not dissuaded from doing so by the plain, simple information on the label, she doesn't need an attorney. She needs a tin foil hat to protect her from TV commercials and prayers from all of us that her daughter won't grow up to be just as ditzy as her mother.

Maybe she isn't really ditzy. Maybe she really did this out of a sense of social responsibility and the notion that the manufacturer of a processed food should be held accountable for the truthfulness of its advertising. Maybe it had nothing to do with greed on her part or that of her attorney. And maybe I will win this year's Nobel prize for outstanding contributions to the blogosphere.

Ditzy ... greedy ... or a social do-gooder. There really is no way to know. But what we do know is that we are fools if we expect marketing to tell us the straight story. If we are not skeptical enough to ignore the claims on the TV commercials and read the labels - and teach our children to do the same - then all the class-action suits the lawyers can dream up will not save us from our own stupidity.

Evil on the Back of Your Phone Book

Take a look at the back of your phone book. Chances are there is an advertisement from an attorney who would like you to consider whether you may be a victim of medical malpractice. If you think maybe you have been, you can call for a free consultation.

Have you recently received medical care? Was the outcome less than ideal? Maybe, just maybe, if something had been done differently, the outcome would have been better. And maybe a jury could be convinced of that and award you a sizable sum of money - of which the attorney would take perhaps 40% plus expenses.

As you have surely noticed, tort reform has been a hot topic for many years. A "tort" is a civil wrong, and an alleged tort is the basis for a civil liability lawsuit. There are many things wrong with our tort system, and enumerating them could fill this entire essay. One of them, perhaps the most fundamental, is the implicit assumption held by so many people that if something bad happens, it must be someone's fault, and that person (or entity) should be made to pay. So, if you slip and fall, that's an accident. But if you slip and fall on property owned by someone else, and that someone else has liability insurance, there ought to be a way to show that person was somehow at fault and should pay damages. Even if the accident was really no one's fault, you may well be able to collect some money because the insurance company finds it cheaper to give you money than to litigate.

When the alleged tort is a negligent act in the provision of health care by a doctor, that is called a medical malpractice claim. What doctors and lawyers are taught is that proof of medical malpractice requires (1) a duty on the part of the physician toward the patient (which exists when there is a doctor-patient relationship); (2) a breach of duty (meaning negligence in the provision of care); (3) damages (harm to the patient); and (4) causation (the negligent, or substandard, care caused the harm to the patient).

That's what it says in the textbooks. That's not how it works in real life. All that is necessary is to convince a jury that maybe, just maybe, if something had been done differently, the less-than-ideal outcome would have been somewhat better.

As you can imagine, when people get sick or hurt and seek medical care, it is quite common for outcomes to be less than ideal. If people sued every time this happened, and every case went to trial, our court system would have no capacity for any other kinds of cases. The entire court system would be overwhelmed with medical negligence claims and couldn't possibly handle them all.

The fact that this isn't the situation is testament that common sense is at least somewhat common, and most people realize that when bad things happen it isn't always someone's fault.

But claims of medical negligence are common, and people sue. The attorneys representing the plaintiffs believe this is good. First I will tell you why they think that, and then I will tell you why they are wrong.

Lawyers have a different way of looking at the world from most of the rest of us. (I don't have any studies to prove this. I am simply expressing an opinion I have formed from many years of observation.) My perspective on human nature, which I believe is shared by most people, is that people are basically good, and we are raised with ethical and moral values that guide us toward doing the right thing. And the values with which we were raised serve as guideposts that we strive to follow in everything we do as we go through life. Certainly we make mistakes from time to time, but we try to live up to the principles we've been taught, whether they are grounded in religion, canons of ethics, secular humanism, or any other system for modeling human behavior.

Lawyers, on the other hand, believe that these systems are all abysmal failures, and that people do the right thing, and refrain from doing the wrong thing, primarily (or exclusively) because of a fear of legal consequences. We behave properly, and refrain from both criminal and civil wrongs, only because we fear being charged with crimes, tried and incarcerated, or sued and impoverished if we don't have adequate liability insurance coverage.

With this perspective on our society, it is easy to see why they believe that the right to sue is one of our most important legal rights, and anything that fetters that right in any way (such as a limit on how much money a jury can award for pain and suffering, also called "non-economic damages") is unacceptable.

Why are they wrong? Why is the proliferation of medical negligence claims not a good thing?

I'll start with something you've heard about - and about which I've written in this blog before: defensive medicine. This means doctors ordering tests they think are not really necessary but which will help, in the event of a bad outcome and a medical negligence claim, to show that they were being diligent and thorough. In other words, because any time a patient has a serious or complicated problem, we realize we might be sued if, despite our best efforts, things don't go well, and so we are preemptively building a case for the defense. This is an expensive way to practice medicine. How expensive is an open question, and certainly a matter of controversy, as I've described in earlier essays.

The second reason, and one which I think is the most important, is that our medical tort system doesn't do what it's supposed to do. The system should accurately identify patients who have been harmed by avoidable medical error, fairly evaluate the economic damages, and compensate the patients accordingly. Substantial research shows this is not happening. Many people get money in the absence of real damages (!), or get an amount of money in no way commensurate with damages. Simultaneously, many patients deserving of compensation don't get it. And many people who would be compensated if we had in place a system that worked properly never realize they were harmed by avoidable medical error and never seek compensation. Oh, and by the way, a very large share of the money that is paid out by insurance companies goes not to patients but to lawyers.

The third reason is that our present system poisons the doctor-patient relationship. Doctors see every encounter with every patient as a lawsuit waiting to happen. I could write a very lengthy essay on the pernicious ways in which this damages the very human interaction that takes place between patient and physician. Suffice it to say that it is evil.

Yes, evil. I used that word in the title, and again here, because it is provocative. Like Ronald Reagan's phrase "evil empire" or GW Bush's "axis of evil." It makes people of opposing viewpoint bristle. Attorneys who represent medical malpractice plaintiffs will bristle at the use of the word to describe their phone book advertising. That's OK with me. Because I think most everybody else looks at the world differently and will understand what I mean.

Stand Your Ground

A young man was shot to death in Sanford, Florida (north of Orlando) in late February. The incident involved a man who was participating in a neighborhood watch program and had a permit to carry a gun. Diverse versions of what happened that day have been reported by the news media, with the shooter claiming self-defense, while those who see his actions as criminal note that the decedent was unarmed.

This has focused attention on a provision of Florida law known as "stand your ground." Many critics appear to be blaming the law for creating a Wild West mentality in the Sunshine State. But it seems a stretch to suggest that such laws encourage vigilantism or cause people to feel justified in shooting each other at the slightest provocation.

An understanding of the meaning of the phrase "stand your ground" in this context requires an awareness of the variety of legal treatments of self defense that may be found in different jurisdictions.

A series of laws enacted in England - including the Firearms Act (1920); the Prevention of Crime Act (1953); an omnibus revision of criminal law (1967); and a sweeping ban on handguns (1998) - has created a very different legal climate for self defense in Britain from what exists in the United States. In England, just about any implement may be judged an "offensive weapon" when used to injure another person; its possession will then be retrospectively treated as a crime. (In fact, police may stop and search a person and charge him with a crime for possession of an "offensive weapon" that has never been used.) When a person uses force in self defense, that use of force will be judged in retrospect. The standard is not whether a reasonable person placed in a situation would be fearful of serious harm from an assailant, but rather whether the fear turned out, when all was said and done, to have been warranted. Many observers have concluded that the right of self defense effectively no longer exists in England. Well publicized cases seem to substantiate this view. Published "Guidance" from the Crown Prosecution Service suggests that a decision to prosecute based on assessment of reasonableness of force will be strongly influenced by the consequences of the use of force and the use of a dangerous weapon. So you can be fairly certain that self defense involving a knife or firearm and serious harm to the assailant against whom you are acting in self defense will turn you into a criminal defendant.

Many Britons are quite unhappy with this situation, and Conservative Prime Minister David Cameron is on record as saying the right of self defense, long a feature of English Common Law, should be restored to its rightful place in statute.

The situation in the U.S. is a veritable crazy quilt. There are jurisdictions where one cannot lawfully possess a handgun in one's home, and many more where it is difficult or impossible to obtain a permit to carry a gun lawfully in public. On the other hand, in many other locales, a permit to carry must be issued to any citizen with a clean record. In two states (Vermont and Alaska) one does not even need a permit.

In some jurisdictions there is a duty to retreat. If you are threatened by a criminal assailant in your own home, you must try to escape. You may act in self defense only when you have reasonably concluded that death or grievous bodily injury is imminent and that there is no possibility of escape. Other jurisdictions have established what is commonly called the Castle Doctrine, meaning you have no legal duty to retreat from your own home and may use force (including lethal force) to prevent serious injury to yourself or your family.

But what if you have a permit to carry a handgun in public places, and you are attacked in a public place? A law such as Florida's says you may "stand your ground" - meaning you may use force in self defense if you are any place where you have a right to be.

As you can surely see, it is important to know what statute and case law say about your rights in the jurisdiction where you live and work and go about your daily business. The same is true if you routinely travel to other states. Does the state in which you are traveling recognize carry permits issued by your state? What are its legal requirements for acting in self defense?

What about defense of property? Some states authorize the use of force, even lethal force, in defense of property under some circumstances. So you can lawfully shoot a burglar in your home. Whether it is ethical to use lethal force in defense of property is another question entirely, and surely a more important one. I can imagine using lethal force in defense of property only under extreme circumstances, such as stopping an arsonist from burning down my house (because that could pose a danger to human life, including neighbors and firefighters).

Notice that none of this, even a "stand your ground" law, says you can go out looking for trouble. If you go out and pick a fistfight, find yourself on the losing end, even to the point of being in danger of serious injury, and then react by using a gun to bring the conflict to an end in your favor, you will have a very difficult case to make.

Science fiction author Robert Heinlein once said, "An armed society is a polite society." By this he meant that when people go about in public carrying guns, they tend to be more circumspect in their behavior, knowing that the presence of a gun raises the ceiling on escalation of any interpersonal conflict. They therefore feel obligated to avoid conflict and to de-escalate conflict when it occurs.

Unfortunately, many people who obtain permits to carry guns do not take the time and make the effort to familiarize themselves with the legal and ethical principles governing the use of lethal force in self defense. I have many times recommended the excellent book by Massad Ayoob titled In the Gravest Extreme: the Role of the Firearm in Personal Protection. I believe it should be required reading.

None of this answers the question of whether people should be able to use lethal force in self defense or under what circumstances. Should the Castle Doctrine be the law? What about "stand your ground" laws? These are questions on which we all have our own opinions. The record suggests that persons who own and carry lethal weapons lawfully rarely use them to commit crimes. Ardent advocates on either side of the gun rights issue cite statistics, often saying things that directly contradict each other.

I would encourage those who are interested to do a bit of serious research into the validity of claims and counter-claims about whether the private ownership of firearms by law-abiding citizens is good or bad for our society. I could try to convince you that my own views on this question are correct, but that would take a very long essay. If you know me, ask my opinion when you have plenty of time. If you approach the subject in a spirit of intellectual inquiry, I'll buy the beer.

The Federal Mandate: Eat Your Broccoli

Unless you were hiding under a rock last week - or assiduously avoiding coverage of national news - you know the U.S. Supreme Court was hearing oral arguments on the constitutionality of certain aspects of the Patient Protection and Affordable Care Act, also known as Obamacare. By the way, for those who have expressed disapproval of the use of the coined word "Obamacare" as derisive, disparaging, or pejorative, lighten up. President Obama himself has approved of its use.

While the high court heard arguments on whether these issues were even appropriately being considered (because the law hasn't taken effect yet) and whether the expansion of state-administered Medicaid programs required by the law violates states' rights, the central question that has generated the most interest is whether the individual mandate is constitutional.

Does, or does not, the U.S. Constitution confer upon Congress powers sufficiently broad to allow the national government to require all of us to buy health insurance? While there are many intellectually interesting arguments on various sides of this question, let me begin by telling you my opinion. The answer is no. Congress can confiscate my money through direct taxation and use it to pay for my health care through a federal program. Congress cannot, however, force me to buy health insurance though any powers accorded to it in the Constitution. I will go on to say that what they are allowed to do is much simpler than what they aren't allowed to do, and it would achieve the goal of universal coverage, while the individual mandate as written in PPACA will not.

I believe we need universal coverage. I also believe we don't have it because most people who have health insurance in our current system are satisfied with what they have and don't want anybody messing with it. Perhaps if they understood how easy it is to lose that coverage in an economy in which job security is a fantasy, they would favor doing whatever works to achieve universal coverage. Effective political leadership, the kind that can explain things to John Q. Citizen and mold public opinion, is what we need - and haven't had.

Now let's get back to the question. If I refuse to buy health insurance, does that affect interstate commerce? Sure. Insurance is a mechanism for pooling risk. If lots of folks who are young and healthy and use very little health care refuse to participate in the pool, the cost of participating goes up for everyone else. And when they do get sick or hurt and require health care for which they are not insured and cannot pay, the cost shifting that results from that also drives up costs for everyone else. Inasmuch as the health care market is regional, or even national, my decision has an effect on interstate commerce. But the next question is whether Congress can use its power to regulate interstate commerce to force me to engage in that commerce when I have chosen not to.

When you start looking for analogies, you run into trouble. Can we find other examples of Congress forcing people to engage in interstate commerce? Does it make any sense that Congress should force people to engage in interstate commerce for the purpose of creating commerce that it can then regulate?

Justice Scalia used the food analogy that some have offered. You can go hungry for a while, but eventually you have to eat. While it is true, they say, that a person can stay out of the health care market for a time - perhaps even a long time - it is a virtual certainty that eventually that person will require health care and will then be engaging in this commerce about which we are arguing. That inevitability allows Congress to regulate the individual's behavior in anticipation.

Scalia noted that Congress isn't just regulating the commercial transaction between the provider and consumer of health care or between the purveyor and the purchaser of health insurance. No, Congress is telling the purveyor what kind of health insurance it must offer and the purchaser what kind he must buy. So, Scalia analogizes, Congress says not only must you eat, but you must eat broccoli. Others have expanded on this argument. Not just broccoli, but a broadly healthful diet. And join a health club. Exercise at least 5 days out of 7, for at least 30 minutes per day. OK, that last part may be way beyond regulating interstate commerce, but mandating that we buy health club memberships isn't, because there are several nationally franchised companies. Just tell me this: does the fact that I have an exercise room in my house with equipment for aerobics and weight training exempt me from this requirement? (And yes, if you're wondering, I actually work out almost every day.)

Time for a deep breath. How important is the individual mandate? Well, if you want to preserve the private health insurance market, and have any hope of controlling costs, it's very important. And don't forget that really popular provision of Obamacare, the part that tells insurance companies they cannot refuse to cover pre-existing conditions. If you don't make me buy health insurance, why shouldn't I just wait to buy it until I need it - when I get sick or hurt? Because then my condition will be labeled "pre-existing" and won't be covered. After all, the reasoning goes, what I'm trying to do is like buying collision insurance after I crash my car and expecting my claim for damages to be paid.

But if the individual mandate is unconstitutional, which I believe it is ... now what?

We could come up with another, even more incredibly complex piece of legislation to cover everyone. Or we could do the simple thing and create a single payer system (like Medicare for everyone) and hope that giving the government as much control over the rest of the health care system as it has over Medicare doesn't get us into trouble. (Remember P.J. O'Rourke's clever observation: "Giving money and power to government is like giving whiskey and car keys to teenage boys.")

We need universal coverage. Every single day in my job as an emergency physician I see many regrettable consequences of people's lack of health insurance. So take my word for it. Whatever approach we pick to achieve the goal of universal coverage, we have to pick something. What we're doing now isn't working. You pick. [By "you," I mean the American people.] Once you pick something, feel free to ask me whether it will work. I've seen enough things that didn't to be an expert on what will.

Gun Control and the Slippery Slope

Every time there is a shooting that makes the national news because the number of victims was more than one or two, and especially if it was quite a bit more than that, we are sure to hear proponents of stringent gun control measures calling for a ban on high-capacity magazines. The idea is that being able to fire numerous rounds without having to reload the gun makes a deranged killer even more deadly. And so, if there is a limit of ten rounds per magazine, the killer will be forced to stop and reload more often than if the magazine holds 15 or 17 rounds.

Such a proposal will invariably be labeled a "common-sense" gun control measure. Anyone who opposes it will be accused of somehow being in league with psychopaths and criminals - who, after all, are the only ones who "need" large-capacity magazines, for the purpose of killing as many victims as possible in the shortest possible time. Oh, and the police need them, too, so they won't be "out-gunned" by the lawless.

Twenty-five years ago, when talk of banning "assault weapons" was approaching a fever pitch, a colleague who was an avid pistol shooter told me, in a conversation about gun control, that no one "needs" a semi-automatic rifle.

[For those unfamiliar with the mechanics of firearms, a semi-automatic rifle or pistol fires one bullet with each squeeze of the trigger, and the next round is "automatically" fed from a magazine into the chamber. This is different from a "machine gun," which will fire bullets in rapid succession if the trigger is squeezed and held. The typical machine gun is capable of "selective fire." Squeeze and release the trigger: one round at a time; squeeze and hold: rapid fire of bullet after bullet until the trigger is released. Some weapons offer the option of three-round bursts. In military parlance, an "assault weapon" is one that can be used to lay down a field of fire, which necessitates the mode known as "full auto." So only a machine gun, or selective fire rifle, meets the definition of an assault weapon. Many people use "assault weapon" to describe semi-automatic rifles and pistols, sometimes out of ignorance, sometimes to make them sound as though their only raison d'être is wanton destruction of human life.]

First, let us take note of the fact that owning a selective fire rifle (lawfully) requires a special license that is very expensive, and an awful lot of paperwork. And the firearms themselves are quite pricey. They are very rarely found on the street. Then we can move on to examine the difference between ten- and thirty-round magazines for use in a semi-automatic rifle or ten- and fifteen-round magazines for use in a semi-automatic pistol. The difference is simple. One must reload once or twice, versus not, in order to fire 30 rounds. How much extra time does that take? And does the pause to reload give a person who might try to stop the shooter time to intervene?

With a little practice, the time to reload is extremely brief: perhaps a second or so. And if you think you can tell when the shooter is pressing the release button to eject the magazine, with the right hand, while reaching for a fresh magazine with the left hand, thus identifying the moment when a flying tackle will put a stop to the carnage, consider this: the way most guns are designed, there is quite possibly still a round in the chamber, and the shooter can fire it at you. Bad plan.

So let's move on a little further. How about banning semi-automatic pistols and rifles (except for use by law enforcement, which means they are still being manufactured, and criminals will still get hold of them), and restricting people (the law-abiding, anyway) to revolvers? They typically hold six cartridges (bullet plus gun powder plus a "primer" to ignite the powder in a metallic case) and take much longer to reload than a semi-automatic pistol. Hmmm. Well, they do take longer to reload, but a lot longer? Not necessarily. There is a device called a speed loader that makes the process a lot faster, especially with practice. Ask any police officer who carried a revolver in the days before most agencies switched to semi-auto pistols.

Maybe we should restrict civilians to single-shot firearms that must be reloaded after each round is fired. After all, a responsible and skilled hunter believes in the "one-shot kill." Why do you need a quick follow-up shot? Ask a good hunter whose first shot didn't put the animal down right away about the importance of a follow-up shot. And then there is the matter of using guns for self-defense, but that is another argument altogether, especially when you're talking to people who think a law-abiding citizen who buys a gun for self-defense is much more likely to shoot his spouse in anger, or by mistake, than to use the gun in defense of home and family.

By now you should be able to see that the title revealed where this was going. And that is the problem with the societal debate on gun control. Every time the proponents of gun control measures put forth what they call a "common-sense" measure, the advocates for gun rights immediately see what will follow it, and what will come after that, and so on.

For much of the 20th century, a citizen with a clean record willing to subject himself to an extensive background check, pay a hefty fee, and do lots of paperwork could get a license to own a selective-fire rifle. Then in 1986 it became illegal for a person with such a license to purchase such a weapon manufactured after that year. The supply of eligible firearms thus severely limited, their prices have since skyrocketed (unless you buy them illegally, or re-engineer a semi-auto rifle to fire in full-auto mode, which is both illegal and much more technically difficult than news reports would have you believe).

So it's extremely difficult and expensive to purchase a selective-fire rifle. Beginning in 1994, and for a period of ten years, certain semi-automatic rifles and pistols, and high-capacity magazines, were illegal; that ban expired, but there are frequent calls for its reinstatement. Many proponents of gun control frequently argue for banning all semi-automatic firearms, and gun-rights advocates are quite certain that a complete ban on private ownership of firearms will eventually follow.

This, you see, is the slippery slope.

We've seen it with waiting periods. How about a background check? Just look at the records to make sure the prospective buyer is not a convicted felon. That can be done instantly with modern computer systems. But why not a three-day waiting period anyway, a "cooling-off" period to help avoid tragedy for the temporarily unhinged suicidal or homicidal person? If three days is good, wouldn't seven be even better? How about 30 days? Yes, those exist in some locales.

There may be some "common-sense" gun control measures that few rational gun owners would find truly objectionable. Except for the slippery slope. As long as law-abiding gun owners who believe in their right to keep and bear arms, as a natural right of self-defense protected by the Second Amendment to the U.S. Constitution, believe that every gun control measure enacted will be followed by more and more until their rights are a memory ... as long as that is the case, which will be as long as gun control proponents give frequent and ample evidence that this is their agenda ... we will never achieve anything remotely approaching societal consensus on just what "common sense" would dictate.

Update: July 21, 2012
In the wake of a massacre in a movie theatre in the early hours of 7/20/12 in Aurora, Colorado, New York City Mayor Michael Bloomberg has renewed calls for stricter federal gun control.  New York has very strict gun laws, but Mayor Bloomberg believes the reason that the rate of violent crime is rising in NYC while it is falling for the nation as a whole is that the influx of guns from outside the state cannot be controlled without new federal laws.  Most (if not all) of that influx is the result of illegal commerce in guns, so exactly how new laws would solve the problem is unclear.

Political pundits are saying Congress and the Obama Administration will go nowhere near this issue in a presidential election year.  Republicans are consistently pro-gun-rights, and Democrats fear the National Rifle Association. Many believe Al Gore would have won Tennessee and West Virginia - and the White House, without Florida - in 2000 if not for his strident pro-gun-control policy positions.

Thousands of Americans have become instant experts on the complex issue of gun control and are expressing their views on social networking sites.  It is remarkable how many people are sure they have the solution to one of the most consistently vexing problems of modern American society.

In 1968 Bobby Kennedy and Martin Luther King, Jr. were assassinated.  The Gun Control Act of 1968 followed.  More than four decades later we seem no closer to real answers.

For those interested in a critical examination of the issues and the full spectrum of perspectives, I recommend The Gun Control Debate: You Decide.  This is a collection of articles assembled in a cohesive volume by editor Lee Nisbet, Ph.D. in 1991 and updated for the 2001 second edition.